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Is Risk Changing the Politics of Legal Argumentation?

Published online by Cambridge University Press:  01 December 2008


While risk has established itself within the social sciences in general and international relations in particular as a theoretical concept in its own right, its ‘value added’ for understanding international legal processes and argumentation is still rather unexplored. While the dominant approach to risk and law focuses predominantly on the regulation of some specified risk such as diseases or environmental ‘risks’, this contribution argues that the overall semantic shift from ‘threats’ to ‘risks’ signifies an acceleration of time underlying legal argumentation. It introduces a distinction between norms and risks, highlights the respective temporality and reconstructs the current overlap and conflict between them in the case of the European human rights regime.

Copyright © Foundation of the Leiden Journal of International Law 2008

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1 U. Beck, Das Schweigen der Wörter. Über Terror und Krieg (2002); Beck, U., ‘Living in the World Risk Society’, (2006) 35 Economy and Society 329CrossRefGoogle Scholar; Spence, K., ‘World Risk Society and the War against Terror’, (2005) 53 Political Studies 284CrossRefGoogle Scholar.

2 See for example NATO, The Alliance Strategy Concept, available at–065e.htm; Amnesty International, EU Office, Human Rights Dissolving at the Borders? Counter Terrorism and EU Criminal Law (2005); European Security Strategy, A Secure Europe in a Better World (2003); National Security Council, The National Security Strategy of the United States of America, available at; Bigo, D., ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’, (2002) 27 Millennium 3Google Scholar. For further discussion see Daase, C. and Kessler, O., ‘Knowns and Unknowns in the War on Terror and the Political Construction of Danger’, (2007) 38 Security Dialogue 411CrossRefGoogle Scholar.

3 Aradau, C. and van Munster, R., ‘Governing Terrorism through Risk: Taking Precautions, (Un)Knowing the Future’, (2007) 13 European Journal of International Relations 89CrossRefGoogle Scholar; Dillon, M., ‘Governing Terror: The State of Emergency of Biopolitical Emergence’, (2007) 1 International Political Sociology 7CrossRefGoogle Scholar; Daase and Kessler, supra note 2; Gotowicki, S. H., ‘Confronting Terrorism: New War Form or Mission Impossible?’, (1997) 77 Military Review 61Google Scholar; P. K. Davis and B. M. Jenkins, Deterrence and Influence in Counterterrorism: A Component in the War on al Qaeda (2002). Of course, one could argue that ‘precaution’ is not that unknown to international law, as for example in the Corfu Channel case of 1948 or its mention in the 1982 UN Convention on the Law of the Sea. I fully agree – but while precaution is an established principle in environmental law, its application in the context of counterterrorism and international security politics is new.

4 See Dillon supra note 3, Beck, ‘Living in the World Risk Society’, supra note 1.

5 Daase and Kessler, supra note 2. See also, for example, Security Council Resolution 1267 of 15 October 1999, which established a Sanctions Committee under the targeted sanctions regime against the Taliban. Resolution 1333 of 19 December 2000 and Resolution 1390 of 16 January 2002 supplemented Resolution 1267 and extended the travel and arms embargo.

6 One could now argue that deterrence also was directed towards the control of the future. However, the danger deterrence tried to prevent was well known and indeed required an inter-subjectively shared vocabulary to assess and communicate threats and dangers. The recent move to precaution, as many statements by US officials emphasize, addresses the danger before it is known.

7 Of course there are differences between prevention, precaution, and pre-emption; I shall not discuss them at this point. The primary focus of this article is on the difference between norms and risks, and thus both pre-emption and precaution are located on the ‘risk’ side while ‘prevention’ follows the temporality of norms. Prevention takes place when, for example, someone knows a house will catch fire today and tries to prevent it happening – even if that includes infringing property rights. ‘Precaution’ would mean that one occupies the house, arguing that a fire could break out any time.

8 Daase and Kessler, supra note 2; Aradau and van Munster, supra note 3. For a deeper discussion of different notions of uncertainty, see O. Kessler, Die Internationale Politische Ökonomie des Risikos (2008).

9 D. Kennedy, Of War and Law (2004).

10 See ‘Guidelines on Human Rights and the Fight against Terrorism’, adopted by the Committee of Ministers on 11 July 2002, available at (last. visited 10 September 2008).

11 Of course, this is not to negate the existence of other approaches. However, I think that this division of approaches holds true for other approaches as well, i.e. that the other approaches are subdivisions of these two categories, rather than in contradiction to them. For an overview see B. Adam, U. Beck, and Jan Van Loom (eds.), The Risk Society and Beyond: Critical Issues for Social Theory (2000); D. Lupton, Risk (1999).

12 For the emergence of ‘population’ in this respect see I. Hacking, The Emergence of Probability (1975), and M. Foucault, Security, Territory and Population (2007). This insurance-based approach has had an immense impact on economic decision theory, where it is equally assumed that economic actors can frame an uncertain situation in statistical terms – that is, in terms of possible states of the world and probability distributions.

13 See, e.g., Lichtenstein, S. and Slovic, P., ‘Preference Reversals: A Broader Perspective’, (1983) 73 American Economic Review 596Google Scholar; A. Tversky and D. Kahnemann, ‘Rational Choice and the Framing of Decisions’, in R. M. Hogarth and M. W. Reder (eds.), Rational Choice (1983), 67.

14 At the same time, the inscribed positivism requires time and space to be treated as natural conditions of our knowledge: unchangeable and fixed. Time, in other words, is the continuing progression of seconds, hours, and days, where something like a shift in time, as represented by precaution, can only occur in terms of a changed ‘risk aversion’ as some risk adversity increased. See F. C. Benenson, Probability, Objectivity and Evidence (1984).

15 Mox Plant case, available at; or the Gabcikovo-Nagymaros case before the ICJ.

16 See in particular N. Luhmann, Soziologie des Risikos (1991); M. Douglas and A. Widavsky, Risk and Blame (1982); U. Beck, World Risk Society (1999).

17 Essentially, the paper argues on the basis of auto-poietic systems theory. For second-order observation see N. Luhmann, Social Systems (1999), and N. Luhmann, Essays on Self-Reference (1990).

18 For a discussion on the social theoretical dimension see F. Kratochwil, Rules, Norms and Decisions (1989), L. Wittgenstein, Philosophical Investigations (1957), §19.

19 M. Douglas, Risk and Blame: Essays in Cultural Theory (1992), 16.

20 See supra note 4.

21 U. Beck, Risk Society: Towards a New Modernity (1992); M. Foucault, ‘Governmentality’, trans. R. Braidotti and rev. C. Gordon, in G. Burchell, C. Gordon, and P. Miller (eds.), The Foucault Effect: Studies in Governmentality (1991), 87; N. Luhmann, Das Recht der Gesellschaft (1993).

22 J. M. Keynes, The General Theory of Employment, Interest and Money (1936), 214; C. Menger, Untersuchungen über die Methode der Socialwissenschaften, und der politischen Oekonomie insbesondere (1871); von Hayek, F. A., ‘The Use of Knowledge in Society’, (1945) 35 American Economic Review 519Google Scholar.

23 F. Knight, Risk, Uncertainty and Profit (1921).

24 Keynes, supra note 22.

25 Menger, supra note 22; Hayek, supra note 22. See also F. A. von Hayek, The Meaning of Competition (1946); F. A. von Hayek, Individualism and the Economic Order (1949), 92.

26 MacKenzie, D. and Millo, Y., ‘Constructing a Market, Performing Theory: The Historical Sociology of a Financial Derivatives Exchange’, (2003) 109 American Journal of Sociology 107CrossRefGoogle Scholar.

27 For a discussion on the self-referential logic of institutional facts see J. Searle, The Construction of Social Reality (1997), 32.

28 This section draws from Luhmann, supra note 16; and, in particular, R. Koselleck, Futures Past: On the Semantics of Historical Time (1985).

29 See for example the suggestion of St Augustine that God knows no future or past, only eternal present. See Confessiones, Book 1, ch. 7, and his discussion of time and ‘interest’ in Book 9.

30 Most famously during the conflict between the Catholic Church and Galileo Galilei. See also P. Feyerabend, Against Method (1993). On the hierarchical world view, see for example the extent to which Latin as a mode of communication supported a hierarchical world view and the revolutionary impact of Luther by translating the Bible into German and thus making it comprehensible for the common man.

31 Ancient documents were, for example, seen not as ‘books’ but as authorities, subject to demonstration. See Hacking, supra note 12, ch. 3.

32 See St Augustine's treatment of the occult, supra note 29, Book 10. See also how the distinction of immanence and transcendence corresponds with tempus and aeternitas, leading to a conceptualization of time in religious terms. See J. Assmann, ‘Das Doppelgesicht der Zeit im altägyptischen Denken’, in A. Peisl and A. Mohler (eds.), Die Zeit, (1983), 189. See also the extent to which the modern treatment of time has departed from the language of movement. See, for example, C. Taylor, Hegel (1977); G. Günther, Idee und Grundriss einer nicht Aristotelischen Logik (1959). See also Luhmann, supra note 16, ch. 2.

33 See R. Kosselleck, Vergangene Zukunft (1979), Luhmann, supra note 16, at 41. The changes can be traced from the emergence of ‘fashion’ to the legitimacy of authority.

34 In this sense the reference to time immediately shows the social theoretical dimension of risk: risk is not independent of how societies frame and communicate about time. That images or representations of time have changed is widely accepted. Kosselleck, supra note 33; Luhmann, supra note 16, at 20.

35 Luhmann, supra note 16, at 70

36 This is not the place to engage in a lengthy discussion on the concept of norms from a systems-theoretical point of view. See Luhmann, supra note 21, and N. Luhmann, Die Gesellschaft der Gesellschaft (1998), ch. 5.

37 For a discussion on norms see in particular F. Kratochwil, ‘How Do Norms Matter?’, in M. Byers (ed.), The Role of Law in International Politics (2000), 35.

38 In other words, when the distinction between gambling and investing breaks down, as in the recent case of Société Générale in a state of near-collapse. For a discussion on the distinction between investment and gambling see Kessler, supra note 8.

39 Daase and Kessler, supra note 2.

40 I thank Laurent Scheeck for his comments on this part. For an introduction to the ECJ see A. Arnull, The EU and its Court of Justice (2006); R. Beddard, Human Rights and Europe (1994), J. Macdonald, F. Matscher, and H. Petzold, The European System for the Protection of Human Rights (1993). For the ECtHR see P. Mohoney and S. Prebensen, ‘The European Court of Human Rights’, in R. St. J. Macdonald, F. Matscher, and H. Petzold (eds.), The European System for the Protection of Human Rights (1993), 638.

41 General principles of community law (mentioned in Art. 6(2) EUT) are used by the Court to fill ‘gaps’ in the treaty. As a body of unwritten principles, they allow for significant discretion and thus autonomy for the court. See U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law (2000); J. Usher, General Principles of the EC Law (1999). As we shall see, fundamental rights entered the EU as such a ‘general principle of law’.

42 The court even rejected taking human rights into account in Friedrich Stork & Cie v. High Authority of the European Coal and Steel Community, 1959, Case No. 1–58. A first indication of a change can be found in Stauder v. Ulm, where the court notes that fundamental rights were ‘enshrined in the general principles of Community law and protected by the Court.’ (Case 29/69, [1969] ECR 419, at 425, para. 7). The turn was manifested fully in Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle Getreide (Case 11/70, [1970] ECR 1125), where the court argued that fundamental rights would constitute a fundamental principle of national legal systems.

43 For a discussion see L. Scheeck, ‘Solving Europe's Binary Human Rights Puzzle. The Interaction between Supranational Courts as a Parameter of European Governance’, Questions de Recherchel Research in Question, 15 (October 2005), available at; O. de Schutter, ‘The Implementation of the EU Charter of Fundamental Rights through the Open Method of Coordination’, New York University School of Law, Jean Monnet Working paper (2004); see also D. O'Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty, in particular Twomey, ‘The European Union: Three Pillars without a Human Rights Foundation’. See also J. Weiler, A. Cassese, and A. Clapham (eds.), Human Rights and the European Community (1991); H. G. Schermers, ‘The Scales in Balance: National Constitutional Courts v. Court of Justice’, (1990) 27 Common Market Law Review 97.

44 Art. 6(2) EU Treaty, available at (emphasis added).

45 Since the 1970s the ECJ has drawn ‘inspiration’ from the ECHR. In 2000 the EU itself issued two directives on anti-discrimination. On the current status of the Charter of Fundamental Rights, see

46 The Charter of Fundamental Rights proclaimed by the EU summit on 7 December 2000 has not yet become binding law. It was planned that the charter would be implemented as part of the new EU constitution, which, of course, has so far failed to be ratified. Although the charter is not legally binding in the formal sense, the ECJ and the CFI both use it as supplementary source of law.

47 Of course the question of supremacy is open to dispute. In its ruling in Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case No. 11-70, the court referred to the fundamental rights acknowledged by the states to justify its claim of the supremacy of EU law over national constitutions. See also the famous Maastricht Urteil by the German Bundesverfassungsgericht (Constitutional Court), concerning the relationship between the Maastricht Treaty and EU law and the German constitution, available at

48 That does not mean that there is no divergence at all. See, for example, Hoechst v. Commission, joined Cases C-46/87 and 227/88 (21 September 1989), Judgment of the Court of Justice; Niemitz v. Germany, [1992] ECHR (Ser. A), 251-B, paras. 29–33. For a more detailed discussion see Scheeck, supra note 43.

49 See for example Todt, ‘Human Rights’, in Encyclopaedia of European Community Law (1990), 284.

50 Coppel, J. and O'Neill, A., ‘The European Court of Justice: Taking Rights Seriously?’, (2002) 29 Common Market Law Review 662Google Scholar, who argue that by changing from a defensive to an offensive mode, fundamental rights are used to extend the court's jurisdiction into areas previously reserved to member states and their courts.

51 See Scheeck, supra note 43, at 18. Meanwhile the court referred to the ECHR in more than 100 cases. See also E. Guild and G. Lesieur, The European Court of Justice on the European Convention on Human Rights: Who Said What, When? (1998); see also A. Rosas, ‘With a Little Help from My Friends: International Case-Law as a Source of Reference for the EU Courts’, (2005) Global Community Yearbook of International Law and Jurisprudence 203.

53 See the Baustahlgewerbe case, where the ECJ refers to the ECtHR's case law for the first time. For a detailed analysis see Scheeck, supra note 43, at 23 ff.

54 Scheeck, supra note 43, at 20–1.

55 Ibid., at 24.

56 This shift may be best represented in the abandonment of the court's ‘M. & Co.’ ‘paradigm’ – which said that the court would refrain from EU-related issues – and its active embrace of issues with reference to EU law. Modified first in Cantoni v. France (45/1995/551/637), 15 November 1996, where the ECtHR accepted a case that addressed the implementation of a EU directive in national law. The Court avoided a direct engagement with the ‘M. & Co.’ doctrine as the violation of a national norm was interconnected, opening the way for Art. 1 ECHR. And finding that Article L. 511 was defective would therefore amount to making the same finding in respect of Directive 65/65. See in this respect also the German Constitutional Court's decision in Solange (Solange II) 1986, 73 BVerfGE 339. For the changing role of the ECtHR see e.g. John Murray v. United Kingdom, 18731/91 [1996] ECHR 3 (8 February 1996); Roquette Frères case C-94/00 [2002] ECR I-9011.

57 While ECJ had unilaterally already declared the supremacy of EU law in the first (Community) pillar in the 1960s, its influence in the second and third pillars are close to non-existent. See in this respect the Maastricht decision of the Bundesverfassungsgericht. On the other hand, especially the second and third pillars are particularly relevant in the fight against terror from a human rights perspective. A significant institutional impact of the anti-terror campaign on the ECJ is therefore almost certain.

58 Joined cases 46/87 and 227/88 ECR 2859.

59 See also Roquette Frères case, supra note 56. Also Orkem v. Commission, Case 374/87 [1989].

60 On the criteria of ‘equivalent protection’ see also the Solange Judgment, supra note 56.

61 A clear signal to the ECJ that caused some concern in Luxembourg. See also Scheeck, supra note 43.

62 Quoted in ibid., at 33.

63 Art. 1 of Commission Decision 89/515/EEC of 2 August 1989.

64 Baustahlgewebe GmbH v. Commission, Case T-145/89, [1995] ECR II-987 (hereinafter Baustahlgewerbe case).

65 To be more precise, the proceeding commenced on 20 October 1989, the date on which the application for annulment was lodged, and closed with the judgment of the CFI on 6 April 1995.

66 Case C-185/95 P, Judgment, 17 December 1998, para 53.

67 In particular Erkner and Hofauer of 23 April 1987, Series A No 117, § 66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v. France of 23 April 1996, Recueil des arrêts et décisions 1996-II, 546, § 71, and Garyfallou AEBE v. Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V, 1821, § 39.

68 Baustahlgewerbe case, supra note 64, para. 43.

69 Ibid., paras. 30–47.

70 Ibid., para. 141.

71 See also the Single European Act 1987, where the European Convention is mentioned as a source for fundamental rights.

72 See Convention for the Future of Europe 2004, Art. 7.

73 See for example the opinion 2/94 (28.03.1996) by the ECJ that blocked the ECtHR by denying the competence of the EU to adhere to the ECHR. The Commission's requests for negotiating directives led the Council in 1994 to ask the ECJ under Art. 228(6) EC whether accession by the Community to the ECHR would be compatible with the EC treaty.

75 Common Position 2001/930 aimed to deprive of all funds persons who commit or attempt to commit, or participate in, terrorist acts; Common Position 2001/931, which provides a definition of a terrorist act, included a list of some 29 individuals. See also Regulation 2001/930 and 2580/2001.

76 Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers on 11 July 2002 at the 803rd meeting of the Ministers' Deputies, published by the Council of Europe. See in this respect also E. de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’, (2006) 19 LJIL 611, where she argues that the ECHR has evolved into a regional jus cogens. See also C. Warbrick, ‘The European Response to Terrorism in an Age of Human Rights’, (2004) 15 EJIL 989. See also D. Bigo. S. Carrera, E. Guild, and R. B. J. Walker, ‘The Changing Landscape of European Liberty and Security: Mid-Term Report on the Results of the CHALLENGE Project’, Centre for European Public Policy, Brussels, 2007, 4; E. Guild, ‘The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of the “Terrorist Lists”’, (2008) 49 Journal of Common Market Studies 173.

77 Warbrick, C., ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’, (2002) 7 European Human Rights Law Review 287Google Scholar.

78 M. van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threats, Perceptions and Policies (2003); [UK] Home Office, ‘Counter Terrorism Powers. Reconciling Security and Liberty in an Open Society: A Discussion Paper’, 2004, CM 5147, available at; EU Network of Independent Experts in Fundamental Rights (CFR-CDF), ‘The Balance between Freedom and Security in the Response of the European Union and its Member States to the Terrorist Threats’, 2003.

79 I shall not discuss the European measures in detail. For a discussion see for example Ian Cameron, ‘The European Convention on Human Rights, Due Process and United Nations Security Council Counter-terrorism Sanctions’, Report Council of Europe 06/02/2006; Cameron, Ian, ‘European Union Anti-terrorist Blacklisting’, (2003) 3 Human Rights Law Review 225CrossRefGoogle Scholar; Hinarejos, Alicia, ‘Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists’, (2007) 7 Human Rights Law Review 772CrossRefGoogle Scholar.

80 Common Positions 2001/930/CFSP, 2001/931/CFSP. For a detailed discussion see E. Guild, supra note 86.

81 Regulation 2580/2001, 27 December 2001. See also Title V of the EUT, which excludes explicitly acts under CFSP from review by European courts. In the third pillar, juridical oversight exists but is very limited.

82 For an overview of the jurisprudence of the ECHR on terrorism, see Warbrick, supra note 77.

83 See J. Dugard and C. van den Wyngaert, ‘Reconciling Extradition with Human Rights’, (1998) 92 AJIL 187. The judgment is in Soering v. the United Kingdom, Judgment, 7 July 1989.

84 ECtHR 16/23.5.2002, No 6422/02 and 9916/02.

85 Bosphorus Airlines v. Ireland, Application No. 45036/98.

86 UN Doc. S/Res/820, 17 April 1993, available at

87 Bosphorus case, supra note 89, Judgment, para 24.

88 Ibid., para. 26.

89 Ibid., paras. 141–164.

90 Ibid., para. 166. It is noteworthy that the focus is on mechanisms of control and not on the violation of ECHR norms per se.

91 Bourdov v. Russia, no. 59498/00, § 30, ECHR 2002-III.

93 One could now argue that the ECtHR also embraces precautionary measures in the context of the Labita v. Italy case (App. 26772/95), Judgment of 6 April 2000. Here the court also argued that ‘In this connection, the Court considers that it is legitimate for preventive measures, including special supervision, to be taken against persons suspected of being members of the Mafia, even prior to conviction, as they are intended to prevent crimes being committed’ (para. 195). Nevertheless, there are some differences. The court first of all put emphasis on the continued victim status of the applicant (para. 144). The court evaluates a past violation of the ECHR and argues that the mere association with the ‘family’ is not sufficient for justifying ‘such severe measures being taken against him in the absence of any other concrete evidence to show that there was a real risk that he would offend’ (para. 196). So Italy did violate Art. 2 of Protocol No. 4, arguments of precaution notwithstanding. What is interesting in this case is exactly the question of evidence. By demanding sufficient evidence of the ‘real’ risk, the actuality of the threat, the court would actually allow only for preventive, not precautionary, measures.

94 Brogan v. United Kingdom, (1988) 11 EHRR 117.

95 ECHR, Series A No. 28, para 39.

96 C. Warbrick, ‘The European Response to Terrorism in an Age of Human Rights’, (2004) 15 EJIL 989.

97 For a discussion on sanctions see P. Wallensteen and C. Staibanò (eds.), International Sanctions – Between Words and Wars in the Global System (2005); D. Cortright and G. A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s (2000).

98 For an evaluation see in particular the Council of Europe's Parliamentary Assembly memorandum, ‘Alleged Secret Detentions and Unlawful Inter-state Transfers Involving Council of Europe Member States’, available at For a discussion see Guild, supra note 76; Cameron, I., ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights, (2003) 72 Nordic Journal of International Law 159CrossRefGoogle Scholar; A. Biachi, ‘Assessing the Effectiveness of the UN Security Council's Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’, (2006) 17 EJIL 881.

99 UN Doc. S/RES/1267 (1999), UN Doc. S/RES/1333 (2000), UN Doc. S/RES/1390 (2002), UN Doc S/RES/1452 (2002).

100 Kadi v. Council and Commission, T-315/01 (available at, para. 78.

101 ibid., para. 228.

102 Libyan Arab Jamahiriya v. United States of America, [1992] ICJ Rep., paras. 42, 39.

103 Kadi, supra note 100, paras. 242 ff.

104 Ibid., para. 238.

105 ‘Nevertheless, the community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it’ (ibid., para. 243).

106 Ibid., para. 254.

107 Ibid., para. 277. See also para. 272.

108 Ibid., paras. 279, 281.

109 Ibid., paras. 284–346.

110 CSDP 2001/930, 27.12 2001 ABl. Nr. L344 v. 28. 12. 2001, Council Declaration EG/2580/2001 27.12. 2001 Abl. Nr L344 v. 28.12.2001.

111 Joint cases T-110/03, T-150/03, and T-405/03, Sison [2005], 47/03, para 186. And although Sison is remarkable as the court annuls the council decision, the court still argues in para. 245 that ‘in the present case, with more particular regard to the damage referred to in (a), (b) and (d) of paragraph 228 above, it is appropriate to note that the freezing of the applicant's funds, financial assets and other economic resources is a temporary precautionary measure which, unlike confiscation, does not affect the very substance of the right of the person concerned to property in the assets in question but only the use (Yusuf, paragraph 299) and therefore the availability of those assets’.

112 Of course, this does not mean that this trend is irreversible or that there is a strong ‘movement’ in Luxembourg towards precautionary measures. However, the vocabulary of risk and precaution is introduced, the two different temporalities are at work. How it will develop in the future is hard to tell. The ECJ could always argue that blacklisting as a means of fighting terrorism is illegal. But as the opinion of the Advocate General Miguel Poiares Maduro suggests, such a move would include a re-evaluation of the relationship between EU and UN law.

113 See in this respect also recent jurisprudence of the ECJ concerning Art. 54 of the Convention Implementing the Schengen Agreement, or Advocaten voor de Wereld VZW v. Leden van de Ministerraad, C-303/05 (available at, concerning the European Arrest Warrant Framework Decision. For further information see in particular

114 For a further discussion see Scheeck, supra note 43.

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